Many thanks to Opinio Juris and the NYU Journal of International Law and Politics for hosting the symposium and to Margaret deGuzman, Alex Whiting, Sonja Starr, James Stewart, and Kevin Heller for agreeing to read and comment on my article. I would like to use this opportunity to address briefly several key points raised by the commentators.

1) The balancing approach and the ICC’s competing purposes

In the article, I argue that the ICC pursues multiple and sometimes competing goals—protecting defendants’ rights, promoting respect for the rule of law, holding perpetrators of international crimes responsible, and establishing a record of the atrocities. While the first two goals generally tend to favor stricter remedies for prosecutorial misconduct, the last two goals call for a more tempered approach. Meg deGuzman agrees that the balancing approach is necessary to accommodate the competing goals of the ICC, but she argues that the goal of promoting global norms takes precedence. To attain this goal, the court should err on the side of defendants’ rights when addressing prosecutorial misconduct. This would help spread respect for the highest standards of procedural fairness.

I agree with deGuzman that this is an important role for the ICC to play. But as she notes, the Court’s goal is to promote not only norms of procedural fairness, but also the norms underlying the ban on genocide, crimes against humanity, and war crimes. This aspect of the Court’s mission once again calls for balancing: Remedies that err on the side of protecting defendants may sometimes prevent the ICC from completing a case and may thus undermine the court’s ability to promote the global norms that underlie international criminal prohibitions.

2) The adequate protection of defendants’ rights

Meg deGuzman’s point, however, also forms part of a broader critique of the balancing approach (one also noted in Sonja Starr’s, Kevin Heller’s and James Stewart’s comments). In some circumstances, prosecutorial misconduct so undermines the fairness of the proceedings that extreme remedies such as an unconditional stay of the proceedings and retrial are justified. The question is how to ensure that courts properly identify these cases. Some commentators have agreed with deGuzman that courts should generally err in favor of defendants’ rights in order to prevent the erosion of these rights over time. But simply stating that courts should place a special emphasis on defendants’ rights may not provide sufficient guidance. Instead, the article proposes concrete steps that the ICC can take to structure judges’ discretion in a way that protects individual rights in a more predictable fashion.

A key factor that judges ought to consider under the balancing approach is the prejudice that the misconduct has caused to the defendant. The more serious the harm to the defendant’s case, the more there is to remedy. I agree with Starr, Heller, and Stewart that where misconduct has undermined confidence in the outcome of the case, the balancing should come out in favor of defendants’ rights. In such cases, remedies such as a stay of proceedings, retrial, or outright acquittal will be warranted. As I note in the article, the ICC can assert no valid interest in an unreliable conviction.

More generally, to assuage concerns that routine balancing would gradually erode individual rights, I urge the court to take an additional step in its remedial analysis. Before imposing a remedy that accommodates the competing goals of the ICC, judges should examine whether “less restrictive measures” are available—i.e., alternative remedies that are less burdensome on individual rights. If such measures are in fact available, judges should impose them to ensure that defendants’ rights continue to be effectively enforced over time.

3) The distinction between the absolutist and balancing approaches to remedies

If I agree that balancing should not be used to allow unreliable convictions, is the distinction between absolutist and balancing approaches misleading, as Kevin Heller suggests? I will briefly explain why it is not.

As Heller acknowledges, a violation may undermine the fairness of the proceedings, but not the reliability of the outcome. Starr lists several examples of such violations: unlawful searches and seizures; initial detention without counsel or charges; and undue delays in trial (provided the delays do not prejudice the defense). Although these violations do not undermine the reliability of the verdict, international criminal courts have at times adopted an absolutist approach and chosen to impose drastic remedies to redress the violations. Such remedies vindicate the right to fair trial, but effectively end the case and frustrate competing objectives of international criminal justice.

Consider Barayagwiza, the case that Stewart highlights in his response—the violation there concerned the defendant’s prolonged initial detention without counsel or notice of the charges. Using an absolutist approach, the ICTR Appeals Chamber initially ordered a stay of proceedings. A balancing approach would have produced something closer to the Appeals Chamber’s subsequent decision, which ordered a sentence reduction in the event of conviction and compensation in the event of acquittal.[1]

Likewise, I believe that the Lubanga Trial Chamber’s decisions to stay the proceedings reflected an absolutist approach to remedies. In the limited space here, I will only address the first stay. In Lubanga, the prosecution failed to turn over potentially exculpatory documents before trial because of a conflicting obligation to keep the documents confidential and the refusal of the providers of the information to consent to the disclosure. It is true that, without examining the documents, the Chamber would not have been able to ensure that the verdict in the case was fair and accurate. But the trial had not started yet, and as the Appeals Chamber recognized, it was still possible to obtain disclosure and allow the case to proceed. Exasperated with the prosecution’s repeated failures to obtain consent to disclose the materials, however, the Trial Chamber concluded that the only possible response was to stay the proceedings and order Lubanga’s release—effectively ending the case.

The Appeals Chamber, by contrast, chose more moderate remedies. It recharacterized the stay as “conditional” and reversed the order to release. Had the Trial Chamber adopted a similar remedy from the outset (preferably with a caveat that the remedy would escalate if disclosure was not forthcoming within a certain period), it may have resolved the disclosure debacle much more quickly and adequately balanced the competing interests at stake. As the different approaches by the Trial and Appeals Chambers in Lubanga demonstrate, the absolutist and balancing approaches do at times produce different results.

4) Addressing concerns about overdeterrence

On the other hand, Alex Whiting points out that the balancing approach might allow judges to stray too far in the direction of punishing misconduct. As he notes, if judges have the flexibility of imposing smaller penalties, they are more likely to do so. While it may be more protective of individual rights, the balancing approach may overdeter socially desirable prosecutorial conduct. For example, if prosecutors were too worried about sanctions by the court for making prejudicial public statements, they may refrain from making any public statements about a situation or a case, even when the public statements might help the ICC accomplish its mission.

This is a provocative point that requires further exploration. As this symposium itself has shown, scholars debate whether a balancing approach is more likely to protect or undermine defendants’ rights. Starr and others have argued persuasively that a structured balancing promotes individual rights because courts are more willing to impose remedies when intermediate, less costly remedies (sentence reductions, select charge dismissals, and the like) are available. Others, like deGuzman, have responded that judges’ natural inclination is to curtail remedies for criminal defendants, particularly if they are suspected of heinous crimes. This fruitful debate highlights the need for an empirical study of the question.

In the end, even if the balancing approach does overdeter international prosecutors to some degree, this may be a cost worth paying to ensure that courts do not stray too far in the opposite direction of underenforcing individual rights. The balancing approach also retains the virtue of being more candid and transparent, so if a serious imbalance develops, it could be more easily detected and fixed.

5) Promoting a more uniform litigation culture at the ICC

Both Whiting and Stewart also raise the important point about the diverse litigation cultures that shape the views of the prosecutors, defense attorneys, and judges at the ICC. I agree with them that this is a critical issue. As Milan Markovic has argued, it would be helpful for the ICC to develop a code of conduct for prosecutors to promote greater uniformity in prosecutorial approaches to litigation. Such a code would reduce instances of misconduct and would also allow the court, the Office of the Prosecutor, and the Assembly of States Party to offer fairer and more effective responses to any misconduct that continues to occur. More intensive training programs—for prosecutors and defense attorneys alike—might also help promote a more uniform litigation culture before the ICC. I also agree with Stewart that an international bar would be a useful complement to this regulatory framework and that it is an institution that deserves further exploration. At the same time, the absence of oversight by national and international bar associations currently makes it even more important for the ICC judges, the Assembly of States Parties, and the Office of the Prosecutor to undertake the responsibility of policing international prosecutors.

Once again, I’d like to thank all the participants for taking the time to read the article and for offering their insightful and helpful comments. I look forward to continuing the conversation about the goals of international criminal trials and the balance that must be struck between these goals in regulating the conduct of international prosecutors.

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1. I recognize here that the second Barayagwiza decision is more complicated, giving the emergence of “new facts” about the violation, and Rwanda’s refusal to cooperate with the ICTR. Still, the general point about the adequate response to a prolonged initial detention remains valid.

May 14, 2018ANZAC Day and Post Conflict Reconciliation[Chris Jenks is an associate professor of law and directs the criminal justice clinic at the SMU Dedman School of Law in the US.]
On April 25th, I had the privilege of attending an ANZAC Day dawn service at Kranji War Memorial Cemetery in Singapo...